Lawyer advertising is seeing its rules, restrictions, and ethical guidelines modified by federal courts, state bars, and the American Bar Association in a number of different ways and in a number of different states.
Whether you’re considering a new ad campaign, need to keep an eye on what your competitors are doing, or simply want to stay abreast of the latest legal and ethical developments in lawyer advertising, we’ve assembled this list of test cases and reference links so you can better monitor this changing landscape:
In Virginia: In a June 2012 case that may have wide-ranging implications, a Virginia lawyer was found not to have violated ethics rules when he commented about his cases on his blog without client consent. The American Bar Association is considering changing its lawyer advertising rules about making a false or misleading communication to apply only when talking to a potential client. If so, case discussion on attorney blogs may eventually become something of a standard practice.
In North Carolina and Missouri: Whether legal services are compatible and ethical with Groupon’s platform is another hot-button social media issue. The vital question that the legal community is wrestling with is whether the fee-sharing structure compromises an attorney’s “professional independence of judgment.” As this article from lawyerist.com explains, North Carolina is saying no to Groupon, while Missouri is saying yes. Whether such arrangements are lucrative for all parties involved is another matter and one that may not be settled until the ethical issues are more fully resolved.
In Connecticut: The Total Attorneys network has also been found as compatible with the ethical guidelines concerning non-lawyer referral fees. Back in Jan 2010, five Connecticut lawyers had their ethics case dismissed in what was seen as a test case, according to the ABA Journal here. To date, no state has found that the Total Attorneys model violates its Rules of Professional Conduct. You can read the full Connecticut Statewide Grievance Committee decision here.
In Florida: There is a case pending that concerns Florida Bar rules that prohibit an attorney from “asking his clients to post reviews of his services on a lawyer-directory website.” The complaint states that this prohibition violates an attorney’s First Amendment right “to engage in truthful commercial speech,” as well as the consumers’ right “to receive information that may be critically important to their selection of a lawyer.” Read more about the case here
In New York: In a similar March 2012 case, the Second Circuit Court of Appeals decided that some of the rules issued by the state’s attorney grievance committee concerning lawyer advertising were deemed too vague and, thus, violated a lawyer’s First Amendment right. The case involved an attorney who had advertised that he was board-certified by the National Board of Trial Advocacy. Read the decision here.
State-by-State Lawyer Advertising
Attorneys know all too well that they are subjected to advertising rules and restrictions that do not apply to other areas of commerce. It’s not always possible to know the ways in which these rules will be interpreted for specific advertising content and media. In many ways, the world seems to be changing faster than the law can keep up with.
It’s important to stay tuned to what’s occurring in your state and in federal courts so you can more better implement effective advertising without running afoul of the rules and guidelines that govern your firm.